UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4777

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GREGORY BRUCE ADKINS,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. John T. Copenhaver, 

Jr., District Judge. (2:11-cr-00076-1)

Submitted: February 15, 2013 Decided: February 26, 2013

Before WILKINSON, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, George H. Lancaster, Jr., Assistant Federal 

Public Defender, Charleston, West Virginia, for Appellant. R. 

Booth Goodwin, II, United States Attorney, Monica D. Coleman, 

Assistant United States Attorney, Charleston, West Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Gregory Bruce Adkins appeals from his 108-month 

sentence imposed pursuant to his guilty plea to possession of an 

unregistered machine gun. On appeal, he asserts that the 

district court erred when it applied the kidnapping 

cross-reference in calculating Adkins’ Guidelines range. 

According to Adkins, his sentence should have been 

cross-referenced to the crime of wanton endangerment, as his 

actions did not constitute kidnapping under West Virginia law 

and were instead merely incidental to the crime of wanton 

endangerment.1

 We affirm.

We review a sentence for abuse of discretion. Gall v. 

United States, 552 U.S. 38, 51 (2007). The first step in this 

review requires the court to ensure that the district court 

committed no significant procedural error. United States v. 

Evans, 526 F.3d 155, 161 (4th Cir. 2008). Procedural errors 

include “failing to calculate (or improperly calculating) the 

Guidelines range.” Gall, 552 U.S. at 51. “[I]f a party repeats 

on appeal a claim of procedural sentencing error . . . which it 

has made before the district court, [this court] review[s] for 

abuse of discretion” and will reverse unless we can conclude 

 1 Wanton endangerment is any “act with a firearm which 

creates a substantial risk of death or serious bodily injury to 

another.” W. Va. Code § 61-7-12 (2012).
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“that the error was harmless.” United States v. Lynn, 592 F.3d 

572, 576 (4th Cir. 2010).

The West Virginia Supreme Court has noted that 

reasonable limitations must be placed upon the broad scope of 

the kidnapping statute, W. Va. Code § 61-2-14a (2012),2 because 

otherwise the crime of kidnapping could “literally overrun 

several other crimes,” like robbery and rape, where detention of 

the victim is a common occurrence. Thus, the court adopted a 

four element test to determine whether or not a kidnapping is 

incidental to another crime: “(1) the length of time the victim 

was held or moved; (2) the distance the victim was forced to 

move; (3) the location and environment of the place the victim 

was detained; and (4) the exposure of the victim to an increased 

risk of harm.” West Virginia v. Kitchen, 536 S.E.2d 488, 493 

(W. Va. 2000). In Kitchen, the victim had been restrained for 

more than a half an hour, tried to escape, was in an unfamiliar 

area, and was exposed to considerable harm while being driven 

around in the middle of the night by a drunken man. The court 

found that, under these facts, the forcible restraint and 

transportation of the victim was not incidental to the robbery 

of the victim and, instead, constituted kidnapping. Id.

 2 West Virginia’s kidnapping statute criminalizes unlawful 

restraint. W. Va. Code § 61-2-14a.
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Applying the Kitchen factors to this case, we conclude 

that Adkins’ kidnapping was not incidental to wanton 

endangerment. Adkins held his wife Sabrina for a period of time 

sufficient for him to assemble a gun and drive thirteen miles. 

Sabrina was forcibly restrained both in her home and in the car 

by Adkins’ use of a loaded machine gun and his repeated verbal 

threats to kill her and/or force her to commit sexual favors. 

In addition, Sabrina was driven around by Adkins, who had been 

drinking and threatened her life numerous times, and she 

eventually fled from the vehicle screaming that he was going to 

kill her. See also West Virginia v. Miller, 336 S.E.2d 910, 916 

(W. Va. 1985) (holding that kidnapping was not incidental to 

sexual assault where victim was in defendant’s custody for over 

an hour, had been taken a consequential distance from home, and 

had been exposed to an increased risk of harm). 

Although carrying a loaded machine gun while driving 

under the influence likely constituted wanton endangerment, 

Adkins’ actions went beyond that crime. Therefore, the

kidnapping was not an incidental crime. Accordingly, we find 

that the district court correctly applied the kidnapping crossreference, and there was consequently no procedural error in 

calculating Adkins’ Guidelines range. As such, we affirm 

Adkins’ sentence. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 
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materials before this court and argument would not aid the 

decisional process.

AFFIRMED